UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RODERICK SIMS, 

Plaintiff,

Case No. 2:12-cv-308

v. JUDGE GREGORY L. FROST

Magistrate Judge Terence P. Kemp

CITY OF COLUMBUS, OHIO, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of the following filings:

(1) a motion for summary judgment (ECF No. 38) and a memorandum in support (ECF

No. 39) filed by Plaintiff, Roderick Sims; a memorandum in opposition (ECF No. 43) filed by

Defendant Central Ohio Workforce Investment Corporation; and a memorandum in opposition

(ECF No. 46) filed by Defendants the City of Columbus and Christopher O’Neall; 

(2) a motion for summary judgment (ECF No. 41) filed by Defendant Central Ohio

Workforce Investment Corporation; and

(3) a motion for summary judgment (ECF No. 44) filed by Defendants the City of

Columbus, Christopher O’Neall, and Timothy Peters.

For the following reasons, the Court DENIES the motion for summary judgment (ECF No. 38)

filed by Plaintiff and GRANTS the motions for summary judgment (ECF Nos. 41,44) filed by

Defendants in regard to Plaintiff’s federal claims. This Court dismisses Plaintiff’s state law

claims without prejudice. 

I. Background

Defendant Central Ohio Workforce Investment Corporation (“COWIC”) is a corporation

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 1 of 17 PAGEID #: <pageID>
that provides services to assist the unemployed with finding jobs. The Columbus Police

Department provides police officers for security services to COWIC. One such officer assigned

to this special duty was Defendant Christopher O’Neall, who was working on April 8, 2011,

when the events underlying this lawsuit occurred. On that day, Plaintiff, Roderick Sims, an

African-American male, was using the copying machine when O’Neall approached him. After

O’Neall asked Plaintiff to leave the facility, a series of events described below culminated in

O’Neall employing his Taser on Plaintiff and Plaintiff being arrested and charged with criminal

trespass and resisting arrest. Both charges were later terminated in Plaintiff’s favor.

Proceeding pro se, Plaintiff subsequently filed the instant action on April 9, 2012. In a

ten-count amended complaint, he asserts various federal and state claims against the City of

Columbus, Officer O’Neall, and Sergeant Timothy Peters (O’Neall’s supervisor), as well as a

claim under 42 U.S.C. § 1983 against COWIC. (ECF No. 2 ¶¶ 48-69.) All of the parties have

filed motions for summary judgment, which are ripe for disposition.

II. Discussion

A. Standard Involved

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may therefore grant a motion

for summary judgment if the nonmoving party who has the burden of proof at trial fails to make

a showing sufficient to establish the existence of an element that is essential to that party’s case. 

See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

2

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 2 of 17 PAGEID #: <pageID>
In viewing the evidence, the Court must draw all reasonable inferences in favor of the

nonmoving party, which must set forth specific facts showing that there is a genuine issue of

material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234 (6th Cir. 2003). A

genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is “ ‘whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.’ ” Hamad, 328 F.3d at 234-35 (quoting Anderson,

477 U.S. at 251-52).

B. Analysis

1. Federal claims

Many of the claims in Plaintiff’s pro se amended complaint appear to fall under 42

U.S.C. § 1983: a Monell claim against Columbus (Count One), an “unlawful search and seizure”

claim against O’Neall that encompasses false arrest (Count Two), an excessive force claim

against O’Neall (Count Three), a claim against COWIC (Count Five), a “1983 conspiracy” claim

against Peters (Count Six), and a “race discrimination while receiving federal funding” claim

against Columbus and COWIC (Count Nine).1

 Section 1983 provides: 

1

 Plaintiff pleads state law claims in Counts Four (malicious prosecution), Seven

(intentional infliction of emotional distress), and Eight (assault and battery). Although the Court

addresses these claims infra, two comments regarding the non-federal Counts are warranted.

First, this Court notes that Defendants Columbus, O’Neall, and Peters incorrectly state in

their briefing that Plaintiff’s Count Four malicious prosecution claim falls under § 1983. Such a

claim can indeed fall under § 1983, but malicious prosecution is also a distinct tort claim under

3

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 3 of 17 PAGEID #: <pageID>
Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other proper proceeding for redress

. . . .

42 U.S.C. § 1983. Thus, in order to prevail on his § 1983 claims, Plaintiff must show that, while

acting under color of state law, Defendants deprived him of a right secured by the Federal

Constitution or laws of the United States. See Alkire v. Irving, 330 F.3d 802, 813 (6th Cir.

2003).

The crux of Plaintiff’s § 1983 claims is that while he was allegedly peacefully and

lawfully utilizing COWIC’s resources, O’Neall attacked and arrested him. Although Plaintiff

has filed an affidavit in which he makes conclusory statements regarding the general

circumstances of the incident involved, these generalizations fail to present an issue of material

fact. The only actual evidence presenting detailed facts are from Defendants, and this evidence

presents quite a different picture. This is an important distinction in the parties’ summary

judgment motions that pervades all of the federal claims at issue. Stated most simply: Plaintiff

provides only broad conclusions and no actual details, while Defendants provide evidence that

fills in the details and entitles them to summary judgment. There is a dearth of evidence to

support any of Plaintiff’s theories under § 1983. 

Ohio law. A fair reading of the amended pleading and Plaintiff’s own characterization of the

claim in his motion for summary judgment briefing provide that the malicious prosecution claim

here is only under Ohio law. See ECF No. 27 ¶¶ 60-62; ECF No. 39, at Page ID # 273. The

Court has therefore treated the claim as under state law, despite Defendants’ broader

understanding of the pleading.

Second, Count Ten is a “claim” for indemnification, which is not a claim for relief under

federal or state law. 

4

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 4 of 17 PAGEID #: <pageID>
Review of the evidence indicates that O’Neall approached Plaintiff after the COWIC

facility had closed. The officer asked Plaintiff to cease using the copying machine and to exit

the offices. Plaintiff refused and became angry after O’Neall shined his flashlight in Plaintiff’s

face, purportedly to get Plaintiff to pay attention to him. When a yelling Plaintiff reached into

one of his duffel bags, O’Neall grabbed Plaintiff by the arm. O’Neall asserts in his affidavit that

he was concerned that the agitated Plaintiff might have been retrieving a weapon and that

O’Neall simply wanted to control the situation and escort Plaintiff from the building. When

Plaintiff pulled away, both men fell to the floor. O’Neall then informed Plaintiff that he was

under arrest. When Plaintiff continued to pull away from O’Neall, the officer attempted to escort

Plaintiff down the stairs and from the facility. Plaintiff pulled away and went down the stairs,

exiting the building. Once outside, O’Neall attempted to control Plaintiff, but Plaintiff continued

to resist O’Neall’s attempts to grab his hands and handcuff Plaintiff, as well as O’Neall’s attempt

to take Plaintiff to the ground. When Plaintiff variously assumed a boxer’s stance and appeared

to be ready to flee, O’Neall deployed his Taser on Plaintiff’s calf, taking Plaintiff to the ground,

at which point O’Neall was able to apply the Taser to Plaintiff’s upper back and subdue Plaintiff. 

These events may be unfortunate, but they are not excessive. And because they are not

unreasonable, O’Neall is entitled to summary judgment based on the doctrine of qualified

immunity. 

Qualified immunity operates under certain circumstances to shield from civil liability

governmental officials, such as police officers, who are performing official duties. Sinick v.

Summit, 76 F. App’x 675, 679 (6th Cir. 2003). The affirmative defense is meant to safeguard an

official’s proper decision-making process and offers that party potential relief from frivolous

5

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 5 of 17 PAGEID #: <pageID>
suits. See D’Agastino v. Warren, 75 F. App’x 990, 993 (6th Cir. 2003). It “shields government

officials ‘from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.’ ” 

Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In addition to shielding officials

from liability, qualified immunity may entitle the official not to stand trial or face the other

burdens of litigation. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

The Supreme Court has instructed lower courts to use a distinct analysis to determine

whether the application of qualified immunity is warranted. In addressing the potential

applicability of qualified immunity, courts therefore traditionally followed a sequential inquiry:

“First, the court considers whether, on the plaintiff’s facts, there has there been a violation. 

Second, the court considers whether that violation involved ‘clearly established constitutional

rights of which a reasonable person would have known.’ ” Hoover v. Radabaugh, 307 F.3d 460,

465 (6th Cir. 2002) (quoting Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996)); see

also Davenport v. Causey, 521 F.3d 544, 550 (6th Cir. 2008). This analytic approach has at

times also been characterized by various appellate panels as a three-part inquiry in which a court

must ask:

1) has a constitutional violation occurred; 2) was that right a clearly established right

of which a reasonable person would have known; and 3) has the plaintiff alleged

sufficient evidence to indicate that what the official allegedly did was objectively

unreasonable in light of the clearly established constitutional rights?

Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc). See also Parsons v. City of

Pontiac, 533 F.3d 492, 500 (6th Cir. 2008) (restating test); Wegener v. City of Covington, 933

F.2d 390, 392 (6th Cir. 1991) (“A public official is entitled to qualified immunity for conduct in

performing discretionary functions so long as that conduct does not violate clearly established

6

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 6 of 17 PAGEID #: <pageID>
statutory or constitutional rights of which a reasonable officer would have known.”). Other

appellate panels have found the third step to be redundant, at least in excessive force cases. 

Kijowski v. City of Niles, 372 F. App’x 595, 598 n.7 (6th Cir. 2010). Regardless of this latter

point, courts are now permitted to depart from the sequential analysis and address either prong of

the two-part qualified immunity inquiry first. Williams v. Ingham, 373 F. App’x 542, 547 (6th

Cir. 2010); Kijowski, 372 F. App’x at 598.

It is also important to note that the doctrine of qualified immunity recognizes that an

official can be found to have violated the constitution, but still be granted immunity for

reasonable mistakes as to the legality of his or her action. Saucier v. Katz, 533 U.S. 194, 206

(2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). The

reasonableness of such mistakes is inherently dependant upon the clarity of the legal constraints

governing the particular conduct involved. The contours of the right must be sufficiently clear

that a reasonable official would understand that what he or she is doing violates that right. Id. at

202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

In determining whether a defendant is entitled to qualified immunity, “[t]he ultimate

burden of proof is on [the plaintiffs] to show that [the defendant is] not entitled to qualified

immunity.” Wegener, 933 F.2d at 392. See also Russo v. City of Cincinnati, 953 F.2d 1036,

1043 (6th Cir. 1992). There is no dispute here as to whether Plaintiff remained on the COWIC

premises after it closed, whether Plaintiff ignored O’Neall’s requests to leave, whether Plaintiff

became agitated and resisted O’Neall’s attempts to resolve the situation without incident, and

whether O’Neall reasonably believed that he and the COWIC workers might have been at risk

given the uncertainty as to whether Plaintiff had a weapon. Plaintiff’s conclusory affidavit

7

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 7 of 17 PAGEID #: <pageID>
conveniently talks around these core issues. Consequently, even if O’Neall erred in his handling

of the incident, it was an understandable error in light of the uncertainties that pervaded the

situation so that no reasonable juror could conclude based on these facts that O’Neall’s actions

were objectively unreasonable. In other words, qualified immunity applies.

The doctrine also extends to the Plaintiff’s arrest because either probable cause to arrest

Plaintiff existed or O’Neall was objectively reasonable in thinking it did. For probable cause to

arrest to exist, the “facts and circumstances within the officer’s knowledge [must be] sufficient to

warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown,

that the suspect has committed, is committing or is about to commit an offense.” Crockett v.

Cumberland Coll., 316 F.3d 571, 580 (6th Cir. 2003) (citing Michigan v. DeFillippo, 443 U.S.

31, 37 (1979)); see also Hinchman v. Moore, 312 F.3d 198, 204 (6th Cir. 2002) (citing Criss v.

City of Kent, 867 F.2d 259, 262 (6th Cir. 1988)). Put simply, “[a] police officer has probable

cause if there is a fair probability that the individual to be arrested has either committed or

intends to commit a crime.” Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002) (internal

quotation and citations omitted). Furthermore, an arrest based upon probable cause where the

suspect is later found to be innocent will not meet the criteria for a § 1983 action. See Criss, 867

F.2d at 262 (citing United States v. Covelli, 738 F.2d 847, 854 (7th Cir.), cert. denied, 469 U.S.

867 (1984). 

Whether there exists a probability of criminal activity is assessed under a reasonableness

standard based on “ ‘an examination of all facts and circumstances within an officer’s knowledge

at the time of an arrest.’ ” Crockett, 316 F.3d at 580 (quoting Estate of Dietrich v. Burrows, 167

F.3d 1007, 1012 (6th Cir. 1999)). “Probable cause does not require the same type of specific

8

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 8 of 17 PAGEID #: <pageID>
evidence of each element of the offense as would be needed to support a conviction.” Adams v.

Williams, 407 U.S. 143, 149 (1972). The existence of probable cause is a jury question, unless

there is only one reasonable determination that is possible. Crockett, 316 F.3d at 581;

Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000).

Only one reasonable determination is possible here. Plaintiff remained in the COWIC

facility after hours and without privilege to do so, which engendered the criminal trespass

charge, and he resisted arrest, which led to the resisting arrest charge. But even if there was lack

of probable cause to support these charges, O’Neall would still be entitled to qualified immunity.

The Sixth Circuit has long recognized that “[i]t is well established that any arrest without

probable cause violates the Fourth Amendment.” Thacker v. City of Columbus, 328 F.3d 244,

255 (6th Cir. 2003) (citing Crockett, 316 F.3d at 580). Thus, a lack of probable cause to arrest

Plaintiff would mean that a constitutional violation had occurred; there is no dispute that at the

time of the incident at issue, the right to be free from an arrest without probable cause was a

clearly established right of which a reasonable person would have known. See Beck v. Ohio,

379 U.S. 89, 90-91 (1964) (recognizing that an arrest without probable cause violates the Fourth

Amendment); Parsons, 533 F.3d at 504 (same). This leaves only the third part of the qualified

immunity inquiry: whether Plaintiff has alleged sufficient evidence to indicate that what O’Neall

did was objectively unreasonable in light of the clearly established constitutional rights involved.

 If Plaintiff’s arrest were indeed a reasonable mistake on the part of O’Neall, the officer is

entitled to qualified immunity. See Saucier, 533 U.S. at 206. The Sixth Circuit has explained

that “probable cause determinations, even if wrong, are not actionable as long as such

determinations pass the test of reasonableness.” Jeffers v. Heavrin, 10 F.3d 380, 381 (6th Cir.

9

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 9 of 17 PAGEID #: <pageID>
1993). Thus, “under § 1983, ‘an arresting agent is entitled to qualified immunity if he or she

could reasonably (even if erroneously) have believed that the arrest was lawful, in light of clearly

established law and the information possessed at the time by the arresting agent.’ ” Parsons, 533

F.3d at 501 (quoting Harris v. Bornhorst, 513 F.3d 503, 511 (6th Cir. 2008)). Because a

reasonable officer in O’Neall’s position could have believed that he had probable cause to arrest,

this Court must conclude that O’Neall remains entitled to qualified immunity. See Pray v. City

of Sandusky, 49 F.3d 1154, 1159 (6th Cir. 1995) (finding that qualified immunity existed where a

reasonable officer could have believed in action taken by defendant officers that proved to be

erroneous).

The Court again notes that “[t]he ultimate burden of proof is on [the plaintiff] to show

that [the defendant is] not entitled to qualified immunity.” Wegener, 933 F.2d at 392; see also

Russo, 953 F.2d at 1043. Plaintiff has failed to present evidence contesting the fundamental

facts upon which O’Neall relies. Based on the evidence before this Court, Plaintiff has failed to

demonstrate that O’Neall is not entitled to qualified immunity on the claim for false arrest and

the claims related to effectuating Plaintiff’s arrest. O’Neall is therefore entitled to summary

judgment on Counts Two and Three. 

This leads into the only other § 1983 count against an individual, the Count Six

conspiracy claim against Peters. There is absolutely no evidence before this Court suggesting in

any way that any such conspiracy existed. Rather, the only evidence before this Court indicates

that Peters investigated the incident, found the use of force O’Neall employed to be justified, and

completed a report on the matter. There is no evidence that he believed the report of O’Neall

was false, that a racial animus was involved, or that he participated in the filing of baseless

10

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 10 of 17 PAGEID #: <pageID>
charges. Given the dearth of contrary evidence, all that remains to be said about this claim is

that Peters is entitled to summary judgment on Count Six.

Two § 1983 claims remain against Columbus. In Count One, Plaintiff asserts a Monell

claim against the City, and in Count Nine, he asserts a claim for “race discrimination while

receiving federal funding” against Columbus and COWIC. The Sixth Circuit has explained that

“[t]he question of whether a municipality is liable under § 1983 has two parts: ‘(1) whether [the]

plaintiff’s harm was caused by a constitutional violation, and (2) if so, whether the city is

responsible of that violation.’ ” Lee v. Metro. Gov’t of Nashville & Davidson Cnty., 432 F.

App’x 435, 449 (6th Cir. 2011). Thus, in addition to the fact that Plaintiff has wholly failed to

point to any requisite policy or custom needed to create municipality liability, Monell v. Dep’t of

Soc. Servs. of City of New York, 436 U.S. 658, 690, 694 (1978), Counts One and Nine fail for

want of a predicate violation. As a general proposition, where an underlying claim against an

officer fails, the Monell claim against that officer’s employer necessarily fails as well. Lee, 432

F. App’x at 450 (holding that because a jury found that an officer had not engaged in excessive

force, the jury was prohibited from considering the Monell claim against the municipality). 

Because the underlying claims against O’Neall and Peters fails as discussed above, the Counts

One and Nine claims therefore fail as well. See Henderson v. Reyda, 192 F. App’x 392, 398 (6th

Cir. 2006) (holding that the dismissal of underlying claims against an officer compelled the

failure of the Monell claims against the county employer). 

This same rationale that entitles Columbus to summary judgment also pertains to

COWIC, assuming only for the sake of the analysis that the latter private entity qualifies as a

state actor here. Plaintiff has failed to point to any COWIC policy or custom behind O’Neall’s

11

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 11 of 17 PAGEID #: <pageID>
actions, and as already discussed the predicate claims fail. 

COWIC does dispute that it qualifies as a governmental actor, a requisite condition for §

1983 liability, and it is this contention that COWIC also uses to attack Count Five. The premise

of that claim is that COWIC acted with Columbus to allow an improperly trained O’Neall to

provide security at COWIC and to taser Plaintiff. Plaintiff also claims that COWIC violated §

1983 by failing to intervene or prevent the encounter with O’Neall. Again liberally construing

the claim here, as in the prior motion to dismiss context, the Court credits Plaintiff with seeking

to impose liability on COWIC for such things as failure to train, unlawful detention, false arrest,

and excessive force.

COWIC argues that it is entitled to summary judgment because it is a private entity and

not a state actor subject to potential liability under § 1983. If COWIC is a private entity and not

akin to a state actor, it cannot be held liable under § 1983. This is because a plaintiff may not

proceed under § 1983 against a private party if the private party did not act under color of law.

Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003). 

Three tests exist for determining whether a private entity should be regarded as a state

actor under § 1983. Under the first test, the public function test, “the court generally conducts an

historical analysis to determine whether the private party has engaged in actions traditionally

reserved to the state.” Id. at 593. The Sixth Circuit has explained that where, as here, a plaintiff

fails to provide any historical argument or analysis, “ ‘this failure alone renders this test

inapplicable.’ ” Id. (quoting Ellison v. Garbarino, 48 F.3d 192, 196 (6th Cir. 1995)). 

Additionally, “the mere fact that the performance of private security functions may entail the

investigation of a crime does not transform the actions of a private security officer into state

12

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 12 of 17 PAGEID #: <pageID>
action.” Chapman v. Higbee Co., 319 F.3d 825, 834 (6th Cir. 2003) (en banc).

The second test, the state compulsion test, also fails to support Plaintiff’s claim. This test

“requires ‘proof that the state significantly encouraged or somehow coerced the private party,

either overtly or covertly to take a particular action so that the choice is really that of the state.’ ” 

Dubuc v. Green Oak Twp., 482 F. App’x 128, 132 (6th Cir. 2012) (quoting Am. Postal Workers

Union, Local 96 v. City of Memphis, 361 F.3d 898, 905 (6th Cir. 2004)). Similar to the first test,

however, where a plaintiff has failed to introduce evidence that the state encouraged or coerced

the private entity to undertake the action complained of, the plaintiff has failed to satisfy the test. 

Id. Plaintiff has failed to introduce any such evidence here. 

Although the nexus test is perhaps most readily applicable to this case, Plaintiff has also

failed to satisfy this third test. That test “requires a sufficiently close relationship (i.e., through

state regulation or contract) between the state and the private actor so that the action taken may

be attributed to the state.” Ellison, 48 F.3d at 195. The Sixth Circuit has explained the contours

of the test as follows:

Under the nexus test, “the action of a private party constitutes state action

when there is a sufficiently close nexus between the state and the challenged action

of the regulated entity so that the action of the latter may be fairly treated as that of

the state itself.’ ” [Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992)]. The

cases establish no clear standard for identifying a “sufficiently close nexus.” Rather,

the Supreme Court reminds us that “readily applicable formulae may not be

fashioned” for finding state action in civil rights cases; such a finding “can be

determined only in the framework of the peculiar facts or circumstances present.” 

Burton v. Wilmington Parking Authority, 365 U.S. 715, 726, 81 S.Ct. 856, 6 L.Ed.2d

45 (1961); see also [Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939, 102 S.Ct.

2744, 73 L.Ed.2d 482 (1982)] (calling the state action determination a “necessarily

fact-bound inquiry”). 

Lansing v. City of Memphis, 202 F.3d 821, 830 (6th Cir. 2000). Plaintiff has failed to satisfy this

test for two reasons.

13

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 13 of 17 PAGEID #: <pageID>
First, Plaintiff’s failure to point this Court to any evidence to support the elements of this

test by itself defeats his claim. Jackim v. Sam’s East, Inc., 378 F. App’x 556, 563 (6th Cir.

2010). Second, now that the factual allegations of the pleading have fallen away from this

analysis and actual evidence is required, it is apparent that the potential liability predicated on 

Chapman v. Higbee Co., 319 F.3d 825 (6th Cir. 2003) (en banc), and relevant to the prior motion

to dismiss decision is inapplicable in this summary judgment context. 

In Chapman, a customer who had been suspected of shoplifting sued the department store

alleging that her civil rights had been violated when she was stopped by the store’s security

officer and subjected to a strip search. The store’s security officer was an off-duty sheriff’s

deputy who while working at the store wore his sheriff’s department uniform, his badge, and his

sidearm. Id. at 834. When the security officer stopped the plaintiff-customer, he did not identify

himself as a police officer, did not threaten to make an arrest, and did not waive his badge or

weapon. Id. at 835. Applying the nexus test, the court of appeals held that, in light of a factual

dispute, a reasonable person could conclude that the officer’s conduct was fairly attributable to

the state. The Sixth Circuit specifically noted that the store policy mandated police intervention

in strip search situations and that if the customer did not feel free to leave as a result of the

security officer’s sheriff’s uniform, badge, and weapon, there could be said to have been a tacit

arrest attributable to the state. Given the extant genuine issue of material fact, the court of

appeals reversed, concluding that the customer might be able to show that the department store,

through its security officer, deprived the customer of her federal rights. 

Here, while O’Neall was providing security at COWIC, he not only carried his sidearm,

but drew it, as well as using his taser on Plaintiff more than once. He also handcuffed and

14

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 14 of 17 PAGEID #: <pageID>
arrested Plaintiff. O’Neall was wearing his police officer uniform and badge and not only

threatened but arrested Plaintiff. Plaintiff has failed to point to any evidence suggesting that any

COWIC employee, custom, or policy controlled, directed, or influenced O’Neall, while COWIC

has presented this Court with ample evidence that O’Neall was acting as a police officer

following the training and policies of his department. 

Unlike the security officer in Chapman, O’Neall’s actions here were not governed by a

private entity’s policy or custom. O’Neall’s conduct thus cannot be said to amount to action

attributable to the state. There is no sufficiently close nexus between the state and the

challenged action of the private entity so that the action of the latter may be fairly treated as that

of the state itself. In other words, necessarily construing all reasonable inferences in Plaintiff’s

favor, the Court cannot say that Plaintiff has introduced a question of material fact as to whether

he has satisfied the nexus test. 

The underlying claims failed and no reasonable juror could conclude that COWIC was a

state actor under the facts before this Court. Accordingly, COWIC is also entitled to summary

judgment on Count Five.

2. State law claims

In his amended complaint, Plaintiffs pleads state law claims against O’Neall for

malicious prosecution (Count Four), intentional infliction of emotional distress (Count Seven),

and assault and battery (Count Eight). In light of the failure of Plaintiff’s federal claims, this

Court presumptively should not address these state law claims. See Jackson v. Heh, 215 F.3d

1326, 2000 WL 761807, at *8 (6th Cir. 2000) (unpublished table decision) (referencing 28

U.S.C. § 1367 and stating that “[w]here, as here, a federal court has properly dismissed a

15

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 15 of 17 PAGEID #: <pageID>
plaintiff’s federal claims, there is a ‘strong presumption’ in favor of dismissing any remaining

state claims unless the plaintiff can establish an alternate basis for federal jurisdiction.” (citing

Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1255 (6th Cir. 1996))). Plaintiff

has failed to assert any justification or alternative basis for exercising jurisdiction over his

remaining claims should the Court grant summary judgment against him on his federal claims. 

Therefore, while expressing no opinion on the merits of the state law claims, the Court dismisses

these claims without prejudice. See United Mine Workers of America v. Gibbs, 383 U.S. 715,

726 (1966) (“If the federal claims are dismissed before trial . . . the state claims should be

dismissed as well.”); Brandenburg v. Housing Auth. of Irvine, 253 F.3d 891, 900 (6th Cir. 2001)

(“the usual course is for the district court to dismiss the state-law claims without prejudice if all

federal claims are disposed of on summary judgment”). 

III. Conclusion 

For the foregoing reasons, the Court DENIES the motion for summary judgment (ECF

No. 38) filed by Plaintiff and GRANTS the motion for summary judgment (ECF No. 41) filed

by COWIC. This Court also GRANTS the motion for summary judgment (ECF No. 44) filed by

Defendants Columbus, O’Neall, and Peters in regard to Plaintiff’s federal claims, but declines to

exercise supplemental jurisdiction over Plaintiff’s state law claims, which the Court

DISMISSES WITHOUT PREJUDICE. The Clerk shall enter judgment accordingly and

terminate this case on the docket records of the United States District Court for the Southern

District of Ohio, Eastern Division. 

IT IS SO ORDERED.

16

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 16 of 17 PAGEID #: <pageID>
 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

17

Case: 2:12-cv-00308-GLF-TPK Doc #: 52 Filed: 07/08/13 Page: 17 of 17 PAGEID #: <pageID>